How Trump Labor Appointees Could Break Up Judges Union Under Biden's Watch

Despite being out of office former President Donald Trump could derail President Joe Biden's quest to be "the most pro-union president you've ever seen" by having his appointees to the Federal Labor Relations Authority (FLRA) decertify the 51-year-old National Association of Immigration Judges (NAIJ) labor union.

The FLRA's three-person quasi-judicial panel, called The Authority, voted 2-1 to strip the NAIJ of collective bargaining powers on January 21, with the two Trump appointees overpowering Biden's sole pick to push the measure through.

If the FLRA's Office of the General Counsel decides to act on the decision, immigration judges that work under the Department of Justice's Executive Office for Immigration Review (EOIR) would lose their right to speak publicly about the nation's legal immigration system, cutting off Americans from one of the only channels it has to gain insights into the 1.6 million pending immigration cases backlog.

The DOJ bars its EOIR judges from speaking to the press. However, they are allowed to share their insights when representing the union. For EOIR judges, preserving the union has been over a year's long fight. However, this battle could very well have ended last year had the U.S. Senate prioritized pushing Biden's FLRA panel nomination through.

Members of The Authority are appointed by the president for five-year terms and are subsequently approved by the Senate. While panel Chairman Ernest DuBester was appointed by Democrats, Colleen Duffy Kiko and James T. Abbott were appointed by Trump. Kiko's term expires in July 2022, but Biden nominated Susan Tsui Grundmann to replace Abbott who's on an expired term. This would have created a Biden majority; however, her nomination has yet to go through.

The Federal Labor Relations Authority board remains governed by a former President Donald Trump majority, putting it in contrast to President Joe Biden's labor agenda. Here, Donald Trump visits the U.S.-Mexico border fence in Otay Mesa, California on September 18, 2019. Photo by NICHOLAS KAMM/AFP via Getty Images

International Federation of Professional and Technical Engineers (IFPTE) President Matt Biggs, whose union is an affiliate of the NAIJ, told Newsweek that the union blames Trump first and foremost for pushing for the union decertification in the first place. But, he ultimately holds Senate Majority Leader Charles Schumer responsible for not prioritizing the president's nomination.

"On Schumer'swatch as the Senate Majority Leader, he's allowed these two Trump appointees at the FLRA to essentially run the FLRA and continue to run it as if it were a Trump FLRA," Biggs told Newsweek. "It's just remarkable that this is permitted to happen, and it wouldn't have happened if Schumer would have moved at least one of the nominees in December—It was avoidable."

Under the Trump administration EOIR, moves were initiated to decertify the union on the grounds that its judges were "managers," making them ineligible for union membership. NAIJ members stated these claims were untrue, arguing that "immigration judges don't even have the authority to order pencils."

Nonetheless, on November 2, 2020, the eve of the election, the Trump plan sprang into action as the FLRA Authority ruled to strip the union of their collective bargaining rights. The Biden administration later took over and directed the EOIR to reverse course on its move to have the union decertified, having it state that the agency did not oppose the NAIJ's move to have the ruling reversed. Despite this, the Trump-appointed majority FLRA Authority made its January 21 decision to move forward with decertification.

National Association of Immigration Judges
The National Association of Immigration Judges could lose a significant number of their union powers if the union is decertified. Here, National Association of Immigration Judges President Mimi Tsankov appears in photo. National Association of Immigration Judges

Thousands of migrants remain camped out along the U.S.-Mexico border as they await asylum processing under America's reinstated "Remain in Mexico" policy. These individuals have found themselves waiting months, sometimes years, before they'll hear a decision on their case, with extended wait periods being largely attributed to the nation's 1.6 million immigration-case backlogs.

After years of keeping annual increases in the backlog within the single digits, the last two years of the Obama administration saw the backlog increase by 18 and 20 percent in 2015 and 2016. However, the number of backlogged cases ballooned under the Trump administration, jumping by 59 percent, 40 percent, 34 percent, and 25 percent in each of his four years, according to Syracuse University TRAC data project. Under President Joe Biden the backlog's rate of growth declined to 9 percent.

According to immigration judge Mimi Tsankov, as president of the NAIJ, the backlog is tied to outdated technology, inadequate staffing, and continuously shifting policy positions under the DOJ of various administrations. With her ability to publicly share these types of insights in jeopardy, Tsankov told Newsweek that the NAIJ plans to "file legal action" before the FLRA Office of the General Counsel acts on The Authority's decision. She sees the ability for judges to speak about their experiences as paramount to improving the nation's legal immigration system and combatting the backlog.

"We work to improve the system, and we want to recommend together solutions for how to address problems related to the backlog," Tsankov told Newsweek. "It's so important that we have a voice and a voice that is one that comes with the position of authority as a recognized collective bargaining agreement. Otherwise, our voices can be marginalized."

Newsweek reached out to the EOIR and FLRA for comment.